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Criminal justice advocates push for new evidence rules

posted Sep 30, 2015, 12:11 PM by Resty Manapat

The night before her client’s murder trial was set to
begin in Brooklyn in 2012, defense attorney Ikiesha Al-Shabazz received a box
from the district attorney’s office, filled with witness statements, evidence
reports and four hours of surveillance footage.

“I was pretty much in tears,” Al-Shabazz recalled. “My
client is facing life. Do you really think that’s reasonable to have me go out
in the hall and sit and digest what’s in this box in the next hour?”

Whether or not it was reasonable, the delay in providing
evidence was legal under New York’s criminal discovery law.

That law, in place since 1979, allows prosecutors in most
cases to withhold a vast array of evidence — including police reports, witness
names and statements, as well as any witness’ criminal history or pending
charges against them — until a trial begins.

Defense attorneys have long complained that those delays
hamper their ability to build an effective defense, leading to a high number of
wrongful convictions, while also burdening the system with cases that could
have been settled with plea agreements, if attorneys had known the extent of
the evidence against their clients.

In Al-Shabazz’s case, she pleaded with the judge to allow
her an evening to review the evidence, and the surveillance footage ultimately
showed her client was elsewhere during the crime.

“The government said my client wasn’t on the tape at
all,” she said. Her client was acquitted.

Advocates for reforming the process are hopeful that the
national conversation over criminal justice could help change the
criminal-discovery process in New York State.

“If we want a criminal justice system that is fair and
equitable, it seems to me that we ought to make sure people are receiving
effective counsel,” Seymour James Jr., attorney-in-chief for the Legal Aid
Society, told POLITICO New York. “How do you professionally counsel someone to
take a plea or not if you don’t know what the evidence is against them?”

Under the current law, the state’s 62 district attorneys
each control the discovery process in their respective counties, leading to
stark differences between neighboring jurisdictions.

“Our experience is that Manhattan is by far the most
strict,” said John Schoeffel, an attorney with the Legal Aid Society’s Criminal
Defense Special Litigation Unit, which serves as the primary public defender
across New York City’s five boroughs.

According to Schoeffel and others, the office Manhattan
District Attorney Cyrus Vance Jr. provides scant information about each case
until the start of the trial.

“They turn over witness statements — if you’re lucky —
the night before, or the Friday before, if the trial starts on Monday, and they
play strictly by the statutory rules of Article 240,” Schoeffel said, referring
to the statute that governs discovery.

“In a complaint or an indictment on a felony case, they
won’t include the name of the person making the accusation,” said Peter
Mitchell, another Legal Aid attorney who practices in Manhattan. “It says
something like, ‘Police Officer X says that he is informed by a person known to
the district attorney’s office.’ And that’s it,” Mitchell said. “So even
something as basic as who’s charging me with this crime is covered. They’ve
really pushed the limit.”

Mitchell and Schoeffel said that level of disclosure is
unique among city prosecutors, and that Vance applies the same rigid rules to
violent and non-violent felonies.

Vance’s chief assistant, Karen Friedman-Agnifilo, said in
a statement that defense attorneys’ concerns over Manhattan’s supposed
restrictiveness “is more of a perception than a reality.”

“Our track record demonstrates that we engage in early
and expedited discovery practices, provided witness safety is not affected,”
she said.

Friedman-Agnifilo
pointed to expedited discovery that has been available in more than 11,000
low-level quality of life cases since 2011, which she said had an inconsistent
track record of participation. In addition, she noted that Manhattan engaged in
a year-long open-file discovery pilot project between 2013 and 2014, but said
the results “were inconclusive and did not expedite pleas or dispositions in
any meaningful way.”

Just across the East River, Brooklyn is generally
considered the most forthcoming county in the city, notwithstanding the
experience of Ikiesha Al-Shabazz.

“Brooklyn is the best,” said David Louis Cohen, an
attorney in private practice who handles cases across the city. “You get more
discovery, earlier and easier for the most part, in Brooklyn than any borough
in the city.”

Cohen said he had just come from the initial court
appearance in an attempted murder case in Brooklyn.

“I was handed a stack of discovery,” he said, which
included police reports, medical records and other information critical to the
trial.

Experiences in the other boroughs are somewhere in
between.

On Staten Island, former D.A. Daniel Donovan adopted a
process similar to that of Brooklyn’s, and one attorney who had previously
worked in Manhattan described a much more open process in the Bronx, saying the
two counties were “like night and day.”

(Defense attorneys say Queens is more restrictive than
the other outer boroughs, but still better than Manhattan.)

The patchwork rules aren’t limited to the five boroughs.

“We don’t get everything — we get more than the statute
would allow,” said Tim Donaher, the appointed Public Defender for Monroe
County, who described a relatively open process that takes a case-by-case
approach.

But Donaher said the situation is drastically different
in Ontario County, just to the southeast, where Monroe County residents who are
sometimes arrested at the mall in nearby Victor “don’t get anything.”

“Had they done that one mile over the border, they would
have gotten some measure of discovery from the [Monroe] D.A.’s office as a
matter of course,” he said.

Ontario County District Attorney Michael Tantillo
disagreed with Donaher’s characterization. While he acknowledged his office’s
official policy was a strict interpretation of the statute, Tantillo said he
and his staff are flexible.

“Any time a defense attorney wants to, and requests to,
sit down with me or one of the assistant district attorneys to go over a case,
we will always agree to meet with the attorney,” Tantillo said. “To those
lawyers who are enterprising enough to reach out to us, we will absolutely
entertain their request.”

In January, the New York State Bar Association released a
147-page report that urged reforms to the state’s criminal discovery process.
The report noted that New York lags behind dozens of other states in its
discovery laws, ranking among the 13 most restrictive, alongside Alabama,
Georgia, Kentucky, Louisiana, South Dakota and Wyoming. It also noted that some
conservative states have enacted reforms in recent years, including Texas,
after former governor Rick Perry signed some of the most open discovery laws in
the nation in 2013.

The report recommends changes to New York’s statute to
allow early disclosure of witness information and other information, such as
police reports, evidence and information favorable to the defense, intended
exhibits, and greater disclosure of expert opinion evidence. In turn, the
report said defense attorneys should have a greater obligation to provide
reciprocal discovery for the prosecution, and agreed-upon timetables that
prosecutors can reasonably meet.

The bar association report followed a task force convened
by the state’s chief judge, Jonathan Lippman, in 2014, which also recommended
changes to the system, including the disclosure of witness statements and
information at least 30 days before trial, the creation of a pre-trial
discovery scheduling conference, and fixing trial dates to encourage a faster
discovery policy.

Both reports also attempt to address the biggest concern
among prosecutors — that they retain the ability to redact or suppress witness
information in order to protect witnesses from intimidation.

Gerald Mollen, the district attorney of Broome County and
the current president of the District Attorneys Association of the State of New
York, said his group has examined the issue of discovery reform “extensively”
and continues to oppose statutory reforms.

“The culture of witness intimidation and threats has
changed dramatically over the last decade,” Mollen said, noting that his policy
in Broome was one of early voluntary disclosure. But he said witness
information is now being used to intimidate witnesses on social media, as well
as more direct attempts, especially in gang cases, to confront witnesses who
are identified. The changes are leading him to reconsider his office’s stance toward
discovery.

“That never existed when I was first a prosecutor, and
now it’s ever-present,” he said, noting that the law allows D.A.s, who “reflect
the values and the criminal justice concerns in that local community,” to make
important decisions about what evidence to disclose and when.

“If you create
a statute [change], that call would no longer be mine or the prosecutor’s,” he
said. “It would be a judge who’s never met with a victim or a witness, never
evaluated a case in that way.”

The long-standing stalemate in Albany has stalled any
attempts at reforms in the Legislature, including one last session that was
filed by Assemblyman Joseph Lentol of Brooklyn. Lentol’s bill mirrored most of
the reforms suggested by Lippman’s task force and the state bar association,
including a 15-day timetable for prosecutors to hand over witness information.

“It’s not really the protection of witnesses they’re
concerned about,” said Lentol, noting that witnesses are often police officers
and other professional experts. “It’s trial by ambush. They have the deck
stacked in their favor, so why should they give it up?”

The reforms are unlikely to progress in the face of
opposition from Republicans who control the State Senate, and generally side
with district attorneys on questions of criminal justice.

Albany County District Attorney David Soares, said his
own office engages in “a very liberal discovery process” — with some exceptions
in certain cases — but that advocates contribute to the impasse when they
refuse to acknowledge prosecutors’ concerns.

“They have staked out a position,” he said. “No one is
moving toward the center because it’s a zero-sum game. … It’s not the issue of
D.A.s losing control of the process. It’s also safeguarding the identity of
people who may not want to be involved in the criminal justice system. There’s
not a whole lot of thought that’s going into these discussions.”

But reformers, including the state’s chief judge, remain
hopeful that a national tide can help spur change in New York State.

“I think we’re coming to a turning point in the sense
that the criminal justice system is, to some degree, having a crisis of
confidence in terms of the public’s support,” Chief Judge Jonathan Lippman
said. “I think discovery is such an organic part of the system that it very
much lends itself with a lot of these issues — wrongful conviction, grand jury
and bail reform — all of it to me is about, for the most part, a level playing
field.”

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